High court kills deportation statute
Gorsuch, liberals cite vagueness of law on noncitizen criminals
WASHINGTON — A divided Supreme Court ruled Tuesday that part of a federal law used to deport noncitizens who commit felonies is unconstitutionally vague, with new Justice Neil Gorsuch joining the court’s liberal members in striking the statute.
The 5-to-4 decision could limit the government’s ability to deport those with criminal records, something that President Donald Trump has identified as a priority.
Justice Elena Kagan wrote that the part of the Immigration and Nationality Act was so “fuzzy” over what constitutes the kind of aggravated felony that requires an immigrant’s deportation that it violated the constitutional protection of due process.
She was joined by the court’s consistent liberals — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor — as well as Gorsuch, who has just celebrated his first anniversary on the court after being nominated by Trump.
Gorsuch did not join all of Kagan’s opinion, but he agreed with the outcome.
“Vague laws invite arbitrary power,” Gorsuch wrote in concurring with the majority.
“Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same — by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up,” he wrote.
For the conservative Gorsuch to align with the liberals might seem a surprise, but his vote was in keeping with questions he asked during oral argument in October. And he was in part following in the footsteps of the justice he replaced, the late Antonin Scalia.
In 2015, Scalia wrote the court’s decision in Johnson v. United States, which struck down a similarly vague description of violent felony in the Armed Career Criminal Act.
The same standards held, Kagan wrote: “Johnson is a straightforward decision, with equally straightforward application here.”
The present case was brought by James Garcia Dimaya, a citizen of the Philippines admitted to the United States as a lawful permanent resident in 1992, when he was 13.
In 2007 and 2009, he was convicted of residential burglary.